It seems that almost every day there is another news release concerning some aspect of the commercial utilization of and applications for drones or unmanned aerial vehicles (UAV), now more commonly referred to within the regulatory community as Unmanned Aerial Systems (UAS).
Although references to drones or UAV are common and used interchangeably, the terminology of Unmanned Aerial System (UAS) is becoming more accepted within the regulatory community and industry by referring to all the combined air and ground system components that comprise and support a UAV operation.
Most everyone is aware of the buzz created by Amazon’s desire to utilize UAVs for product delivery, and other civil and commercial applications that have received recent and increasing publicity, such as agricultural uses (surveying crops or animals, crop dusting, etc.), delivery of beer to fishermen, real estate and other promotional videos, search and rescue, law enforcement, firefighting, security surveillance, commercial filming, photography, aerial mapping and charting, among others.
In light of the mounting pressure upon the Federal Aviation Administration (FAA) to clarify the regulatory status of UAS operations, many different opinions exist regarding the regulatory requirements and other legal considerations applicable to the commercial use of UAVs within the United States. The FAA has put a stake in the ground regarding its jurisdiction and authority over national air space (NAS) and UAS operations; however, recent legal challenges have resulted in continuing debate and ambiguity regarding legal constraints upon such operations.
The FAA Position Regarding Commercial Operation of a UAS
The FAA’s current policies regarding its authority over commercial use of UAS within the NAS may be summarized as follows:
- Under applicable statutory and regulatory authority, UAVs are considered to be aircraft subject to FAA regulation, whether operated for recreational, hobby, business or commercial purposes.
- All civil aircraft, including commercial operation of UAS, are subject to FAA regulation under applicable statutes.
- The FAA controls airspace both above and below 400 feet in that the FAA is responsible for the safety of the NAS from the ground up. (Certain commentators will state this is limited to “navigable” airspace and dispute the FAA has ground up jurisdiction over private property.)
- Commercial or public operation of a UAS in the NAS is only authorized by a certificate of authority (COA) to be issued by the FAA on a case-by-case basis (and then only for certain public agency use such as law enforcement, firefighting, search and rescue, etc.), even if over private property and below 400 feet. (Department of Defense and other federal agency use are outside the scope of this article.)
- Commercial operation of a UAS in NAS requires a certified aircraft, a licensed pilot and operating approval.
- Certain private sector (civil) users of UAS can obtain an experimental airworthiness certificate of a UAS to conduct research and development, training and flight demonstrations.
- Public entities (federal, state and local governments and public universities) may apply for a Certificate of Waiver or Authorization (COA) for limited operations of small UAS. Examples of such operations include search and rescue, firefighting, law enforcement operations, etc. and require a small UAV operated within line of sight of the operator during daylight hours and subject to other restrictions. A COA is issued for particular airspace and any operations outside the approved space must meet Emergency COA (ECOA) criteria and separate authorization by the FAA.
- Flying model aircraft solely for hobby and recreational reasons in compliance with the FAA model aircraft guidance (FAA Advisory Circular 91-57), which prohibits operations in populated areas, does not require FAA approval or certification. Operations are generally limited to a level below 400 feet, within line of sight, and away from airports and air traffic. Operation for commercial purposes is not permitted.
- Despite the number of publicized commercial UAS operations and increasing demand for UAS applications, the FAA will continue to monitor UAS operations and utilize its enforcement rules (i.e., warnings, cease and desist notices and/or imposition of fines) when it becomes aware of unauthorized UAS operations.
- In accordance with the 2012 FAA reauthorization legislation, Congress instructed the FAA to develop a plan for “safe integration” of all UAS by September 31, 2015. This will be incremental and the FAA has indicated that a proposed rule for small UAS (under 55 pounds) should be published later this year, which “likely” will include provisions for commercial operations. It should be noticed that this is referenced as a proposed rule, which likely will remain subject to administrative rulemaking procedures before becoming a final rule at some later date.
- FAA regulations and authority preempt certain state and local government statues and regulations limiting or concerning UAS operations in NAS. Local jurisdictions generally retain the power to restrict the use of UAS by any state or local police or similar department or university.
The FAA interprets commercial use very broadly and excludes only private recreational and hobby use of model aircraft in compliance with the model aircraft regulations. Thus, under the current FAA policy, if one chooses to operate (or contract for the operation of) a UAS for any commercial purpose, the FAA may issue a warning, a cease and desist order and/or a civil penalty against the operator.
Recent Challenges to the FAA’s Authority
The FAA is facing mounting pressure to issue regulations integrating UAS into the NAS, and legal challenges have been filed against the FAA contesting its authority over small UAV operations. In the most recent instance, a Texas search and rescue operation has filed an action contesting the FAA’s authority to order the search and rescue operation to stop their operations of a UAS without a COA. See the Petition for Review filed in Texas Equusearch Mounted Search and Recovery Team et al. v. Federal Aviation Administration, Case No. 14-061, U.S. court of appeals for District of Columbia Circuit, April 21, 2014.
In March a decision was handed down by a National Transportation and Safety Board (NTSB) administrative law judge, involving the alleged commercial use of a drone in connection with promotional video and photography utilizing a small drone weighing less than 5 pounds, with foam wings and a mounted camera. See Decisional Order of Patrick G. Geraghty, Judge, entered March 6, 2014, in the case of Michael Huerta, Administrator, Federal Aviation Administration, Complainant, v. Raphael Pirker, Respondent, Docket CP-217, before the United States of America National Transportation Safety Board Office of Administrative Law Judges.
In Pirker, the FAA assessed a $10,000 fine upon the operator for careless and reckless operation of an aircraft in violation of FAA regulations. Interestingly, the FAA did not issue a cease and desist order or assess a penalty on the grounds the operation of the UAV without a COA was illegal, nor that the operator lacked a pilot license.
The administrative law judge dismissed the FAA’s imposition of the civil penalty, holding in general that the small UAV was not an “aircraft” and the FAA had not yet issued final regulations in accordance with required rulemaking procedures subjecting such a UAV and its operations to the FAA regulations applicable to aircraft. The FAA is appealing the foregoing decision to the full National Transportation Safety Board.
Pending final resolution of such appeal, or other binding judicial rulings, it is not anticipated that the FAA will deviate from its current policies and authority over UAS pending such appeal. Therefore, the FAA is expected to actively continue exercising its enforcement authority whenever it becomes aware of unauthorized UAS operations in the NAA.
What is the Underlying Basis for the FAA’s Restrictions on UAS Operations? What is the Timeline for FAA Action Towards Integration of UAS Operations Within the NAS?
By statute, the FAA is charged with managing and assuring the safety of aircraft operations in the NAS. This obligation has been defined by the FAA to include the network of United States airspace, along with airports and landing areas, associated navigation facilities, equipment and services and applicable rules, regulations and procedures. In accordance with such mandate, the FAA has developed many regulations, policies, procedures, guidance material and training requirements supporting safe and efficient operation of aircraft within the NAS.
In accordance with the FAA Modernization and Reform Act of 2012 (FMRA), the FAA published in November of 2013 a five-year roadmap for the integration of civil UAS in the NAS and to guide aviation stakeholders in their consideration of and planning for future UAS investment and operations. (Roadmap for Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS).)
As referenced in the FAA’s Roadmap, the FAA’s “mission is to provide the safest, most efficient aviation system in the world.” Therefore, according to the FAA, all “UAS must be integrated into the NAS without reducing existing capacity, decreasing safety, negatively impacting current operators, or increasing the risk to airspace users or persons and property on the ground any more than the integration of comparable new and novel technologies.” To do so, the FAA is to develop appropriate policies, procedures and regulations, including guidance and training materials, to support safe and efficient UAS operations in the NAS.
Core concepts behind the FAA’s policies regarding regulation of UAS include are that a UAV is considered an aircraft and “that each aircraft is (to be) flown by a pilot in accordance with required procedures and practices.” Therefore, FAA’s position is that application of these policies to UAS involves consideration of the following areas of concern prior to widespread integration of UAS operations in the NAS:
- Regulatory standards to enable current technology for UAV to comply with Title 14 of the Code of Federal Regulations (Part 14 generally governs all aircraft operations).
- Proof of a UAS airworthiness through appropriate FAA certification or other approved means.
- Demonstration that a collision with another aircraft or other airspace user is extremely improbable.
- Assuring a currently qualified pilot is in command to assure safe operation of the UAV.
More specifically, issues that require evaluation by the FAA in an appropriate regulatory manner prior to full integration of UAS into the NAS include the following:
- The impact upon and interference with other users of the NAS (manned aircraft), such as policies and procedures affecting ATC (Air Traffic Control) clearances, exchange of data and voice communications between UAS pilots, air traffic controllers and other manned aircraft, turbulence avoidance and environmental requirements that are applicable under the National Environmental Policy Act.
- Development of airworthiness standards for UAVs, including consideration of their operational uses, system reliabilities, materials properties, structural design standards and other performance requirements to be evaluated and compared against that for existing aircraft.
- Consideration of the range of performance characteristics in terms of size, speed and other flight capabilities, which impact matters such as performance gaps between the remote pilot (operator) and the avionics on board the UAV, including delays in response time for reaction to ATC instructions.
- Consideration of differences in sensory and environmental cues compared to a pilot in a manned aircraft, including the dependence of a UAS pilot upon a data link for control of the aircraft.
- The impact upon air traffic control clearance practices, such as visual clearances (i.e., by a pilot on board the aircraft), different range of platform sizes and capabilities impacting altitude, wake turbulence criteria, etc.
- Technological considerations to address two critical functional areas, such as “Sense and Avoid” capability for separation and collision avoidance and “Control and Communication” system performance requirements.
Before the end of the third quarter of 2014, the FAA is to propose regulations or amendments to existing regulations to accommodate operations of small UAV (sUAV). The FAA has indicated such regulations will address classification of sUAV, certification requirements of pilots, registration of sUAV, approval of sUAV operations and operational limits. It is anticipated such regulations will reduce the need for conducting operations under a COA or under the constraints of an experimental certificate and will be a key step toward eventual full integration of UAS operations into the NAS. By September 30, 2015, the FAA is to provide regulations for the safe integration of civil UAS into the NAS. Detailed operational standards are being worked on concurrently and will be necessary to implement any such regulations. In both cases, many commentators fear additional delays by the FAA in proposing and finalizing any such regulations.
Besides the FAA, What Other Issues Should Be Considered in Connection with a UAS Operation?
Many states have laws and regulations impacting the operation of UAS, either directly or indirectly. In some cases there is an outright prohibition on operation of a UAS in certain areas (within city limits, over private property, etc.), and in other cases there may be other restrictions on operations. Privacy laws (including requirements of warrants for aerial searches), insurance, and general tort law with respect to personal injury or property damage must also be considered.
Of course, certain state and local laws and regulations imposing restrictions or other regulatory requirements upon UAS operations may be preempted by federal regulation and authority over UAS and the NAS, while certain areas of concern may be reserved to state and local jurisdiction and authority, such as matters involving privacy (search warrants), invasion of privacy, trespassing, personal injury, property damage, etc. Of course, other specific laws and regulations, both federal and state, may apply depending upon the specific purpose of the UAS operations, such as environmental regulations in connection with certain agricultural uses.
Beyond the statutory or regulatory issues, insurance coverage is often-overlooked issue when considering UAS operations. Most homeowner’s insurance policies and general commercial liability policies will either not cover or expressly exclude liability arising from aviation operations. Thus, an operator of a UAS (or those contracting for UAS services) may be exposed to significant claims for invasion of privacy, personal injury, nuisance or other tort actions with no insurance coverage to pay costs of defense or any damage award or settlement.
Finally, although falling under the umbrella of FAA regulation, it should be noted that a licensed pilot participating in an unauthorized UAS operation may be subject to FAA enforcement action (suspension or revocation of airman certificate).
What About UAS Operations Outside the United States?
Needless to say, regulatory and related issues surrounding the explosive demand for commercial applications of UAS is not limited to the United States. Many other countries are facing the same issues as in the United States regarding public, private and commercial use of UAS. Certain foreign jurisdictions have enacted governing regulations covering certain aspects of such operations, such as Canada, Japan and Australia, among others. Import and export laws must also be considered regarding technology included with certain UAS. A discussion of all such laws and regulations is outside the scope of this article. Thus, prior to operating or considering an operation of a UAS in any jurisdiction, one should check with experienced legal advisers in the aviation field and who are familiar with the unique and developing issues surrounding operation of UAS.
When Will We Have More Direction and Certainty?
We will continue to monitor the pending legal actions contesting FAA authority and current regulations applicable to UAS operations in the United States, including any proposed regulations to be issued by the FAA in the coming months. Of course, once proposed regulations are released and published, the rulemaking process will need to be followed and completed (notice and comment period, etc.) before final regulations are implemented. Further, once final regulations are proposed and implemented, there will be standards to develop and compliance requirements that will require lead times prior to implementation of authorized UAS operations.
In the meantime, one should be cautious in proceeding with commercial UAS operations in the United States without taking into account current FAA interpretations and guidance, and the implication of proposed regulations that hopefully will be released in a timely fashion later this year.
David Agee is leader of the Husch Blackwell Aviation Practice Group and co-leader of the UAS/UAV Team, which is comprised of a number of attorneys from different industry groups and disciplines, including aviation, agriculture, technology, manufacturing, transportation, intellectual property, litigation, insurance, corporate, regulatory, taxation and several others.
For additional information, please contact David Agee or Joe Orlet.